US v. Christopher James Gill (11th Cir., 7/27/17): The Difference a Gun Can Make. Enhancement for Possession of Multiple Guns.

In this criminal appeal, Gill challenges the district court’s determination that he was in possession of 8 unlawful firearms, instead of 7.  He was charged with felon in possession of a firearm pursuant to USC §922(g)(1).  Under the Guidelines, that offense is enhanced based on the actual number of firearms possessed.  If the offense involves possession of 8-24 firearms, then the offense level is enhanced by 4 levels.  If the offense involved “only” 3-7 firearms, then there’s a 2 level enhancement.

Gill argued that one of his firearms was manufactured in Florida (where he resided) and there was no evidence it had moved in interstate or foreign commerce.  He argued that the firearm must have a nexus with interstate or foreign commerce for the possession of it to be unlawful under 18 USC §922(g).  The Court responded that Gill’s interpretation is, in fact, true, but that the statute requires only that Gill’s possession of each pistol be “unlawful,” not that it be unlawful under federal law.  The Court adopted the same interpretation of this provision as the 7th Circuit:

We agree with the Seventh Circuit that a firearm may be counted under §2K2.1(b)(1) if state law prohibited the defendant from possessing it, even if federal law did not.  See United States v. Jones, 635 F.3d 909, 919-20 (7th Cir. 2011); cf. United States v. Griffith, 584 F.3d 1004, 1013 (10th Cir. 2009) (agreeing with four other circuits that conduct can be counted as relevant conduct under the sentencing guidelines if it is criminalized by state law).  A firearm that is illegal only under state law does not count for §922(g) purposes, but it does count for sentencing purposes.

The Court concluded there was enough evidence in the record to support the conclusion that Gill’s possession of the 8th gun was illegal under Florida state law (even though the State didn’t actually make this argument in the court below).  Exercising its authority to affirm the district court’s judgment on any ground supported by the record, it did so here.